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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 12, 2012 No. 42

About some questions of the dispute resolution connected with the guarantee

Due to the questions arising by consideration by Arbitration Courts (further - courts) the disputes connected with the guarantee, being guided by article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation", the Plenum of the Supreme Arbitration Court of the Russian Federation decides to make to courts the following explanations.

I. Application of regulations on the guarantee by hearing of cases in claim procedure

1. According to Article 361 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) according to the guarantee agreement the guarantor undertakes to answer to the creditor of other person for execution of its obligation by the last completely or in part.

Courts should mean that the obligation of the guarantor by the general rule is fulfilled by it in cash. However it does not interfere with providing obligations with the guarantee on transfer of goods, performance of works, rendering services, abstention from making of certain actions, etc. as the creditor according to these obligations under certain circumstances (for example, in case of non-execution or improper execution by the debtor of the obligation) can have monetary claims to the debtor: about indemnification, penalty, return of advance payment, etc.

2. According to the paragraph of article 361 Civil Code of the Russian Federation obligations which will arise in the future can be provided to the second with the guarantee. At the same time courts need to consider that the guarantee agreement according to future obligations is considered the prisoner the parties, and the additional rights and obligations provided by it (for example, obligation of the guarantor from the moment of the conclusion of the called agreement to support certain account balance in bank, to open to the creditor information on certain facts, etc.) - by the parties which arose from the moment of achievement of such agreement in the established consent form on its essential conditions. At the same time the requirements to the guarantor connected with violation by the debtor of secured liability can be shown by the creditor only in case of approach of the circumstances specified in Item 1 of article 363 Civil Code of the Russian Federation.

Courts also should mean that the guarantee can provide obligations from the transactions made under resolutive or the condition suspensive.

3. The conclusion of the guarantee agreement after approach of completion date of the primary obligation which is not performed by the debtor is not the basis for recognition of such agreement the invalid transaction as the law does not contain prohibition on establishment of providing according to the overdue obligation. Besides, can be guaranteed concerning the obligation which arose not from the agreement (for example, on compensation of damage suffered, return of unjust enrichment) which completion date is determined according to Item 2 of article 314 Civil Code of the Russian Federation.

4. Because the guarantee is established on case of non-execution or improper execution by the debtor of secured liability, courts should recognize that this circumstance cannot be qualified as the condition causing the transaction of the guarantee therefore to the relations of the creditor, the debtor and the guarantor of provision of article 157 Civil Code of the Russian Federation are not subject to application. At the same time the claim of the creditor to the guarantor can be satisfied only in case of approach of the circumstance called in Item 1 of article 363 Civil Code of the Russian Federation - non-execution or improper execution by the debtor of the obligation provided with the guarantee.

At the same time courts need to consider that the guarantee agreement can be signed under condition (article 157 Civil Code of the Russian Federation). Such circumstances as the conclusion by the creditor with the debtor or the third parties of other security transactions (for example, agreements of mortgage), change of list of participants or governing bodies of society guarantor or the debtor, etc. can be carried to the conditions suspensive causing the introduction of the guarantee agreement in force (Item 1 of article 157 Civil Code of the Russian Federation). As resolutive condition (Item 2 of article 157 Civil Code of the Russian Federation) in the guarantee agreement the termination or recognition invalid or unconcluded other security bargains concluded by the creditor and the debtor can be specified, in particular.

5. Follows from provisions of paragraph 5 of Chapter 23 of the Civil Code of the Russian Federation that the guarantee agreement can be signed without consent or the notification of the debtor; the called circumstance does not influence validity of the guarantee agreement.

However if the coordinated actions of the creditor and guarantor directed to the conclusion of the guarantee agreement contrary to desire of the debtor and capable to cause such effects, adverse for it, as change of cognizance of dispute, transition to the guarantor of rights to claim against the debtor, despite the prohibition of concession of requirements provided in primary obligation without the consent of the debtor, etc. will be established, the court has the right to proceed from the following.

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